People v. Schiraldi

• Decision Date: 05 December 1977
• Citation: 400 N.Y.S.2d 472,93 Misc. 2d 343
• Court: New York City Court
• Parties: The PEOPLE of the State of New York v. Nicholas SCHIRALDI, Defendant.

Page 472

400 N.Y.S.2d 472

93 Misc.2d 343

The PEOPLE of the State of New York v.Nicholas SCHIRALDI, Defendant.

Criminal Court of the City of New York, Queens County, Jury Part I.

Dec. 5, 1977.

John J. Santucci, Dist. Atty., Queens County by Ingrid K. Hansen, Asst. Dist. Atty., of counsel, for the People.

Martin Erdmann by Lawrence Halfond, New York City(Stephen Chakwir, Law Student Assistant, on brief), for defendant.

M. MARVIN BERGER, Judge:

This case brings up a fairly common problem, which, however, appears never before to have been the subject of a reported opinion in this state.

The question is whether there is a conflict of interest where the same district attorney's office prosecutes two cross-complaints for assault arising out of single incident.

Specifically, in the instant caseNicholas Schiraldi was charged with assaulting Norman Seaman on February 28, 1977.However, Schiraldi charged Seaman with assault arising out of the same encounter.That charge was dismissed on July 20, 1977, by a judge of this court, who also denied Seaman's motion that the District Attorney be recused, and that the court appoint a special prosecutor to present the People's case against him.

Schiraldi now moves for the same relief.He claims that prosecution of cross-complaints creates a conflict of interest, because any member of the prosecutor's staff is chargeable with the knowledge of any other staff member citing Santobello v. New York, 404 U.S. 237, 92 S.Ct. 495, 30 L.Ed.2d 427, andPeople v. Selikoff, 35 N.Y.2d 227, 360 N.Y.S.2d 623, 318 N.E.2d 784, in support of his position.He asserts that for one assistant district attorney to prosecute a person who is presented by another district attorney as a complaining witness, in a companion prosecution, arising out of the same incident, demonstrates each assistant prosecutor's disbelief in the testimony of the other complainant.The conduct of both prosecutors is disrespectful of the court and indeed borders on contempt.

By analogy to cases of a lawyer representing two defendants with conflicting interests (e. g., People v. Flynn, 17 N.Y.2d 209, 270 N.Y.S.2d 193, 217 N.E.2d 23) and by reference to the American Bar Association Standards of Criminal Justice The Prosecutorial Function, Part I-1.2-Conflict of Interest the action of the District Attorney in prosecuting both cases, says Schiraldi, approaches unethical or illegal conduct.

Research by the court among prosecutors' offices in New York City discloses several methods of overcoming the procedural problems involved in the handling of cross-complaints by the courts and the prosecution.

Some district attorneys decide to prosecute only one of the cross-complaints, either before or after a preliminary hearing.

Some judges require a hearing for each complaint by different judges, followed by separate trials.Often a judge persuades each complainant to withdraw the charges against the other, or, if unsuccessful, to stipulate that one judge may hear both cases and render a single decision dispositive of both complaints.

But no precedent can be found in New York for granting the relief sought by Schiraldi, on the grounds he urges.A study by Naomi Werne, an attorney on the staff of the New York Bureau of Prosecution and Defense Services of the Division of Criminal Justice Services, discloses one reported case on the subject People v. Municipal Court for Ventura Judicial District, etc., 27 Cal.App.3d 193, 103 Cal.Rptr. 645, a case involving the filing of cross-complaints arising out of a single incident of assault.There, Bishop, one complainant, drove through a populated area where fireworks were being set off on July 4.Two residents of the neighborhood, Pellegrino and Stromstad, the initial defendants, assaulted him.He filed a complaint, but the two defendants retained a private attorney, one Siple, who requested the judge at arraignment, over the objection of the District Attorney, to charge Bishop with assault on the defendants, and traffic violations, and appoint Siple as special prosecutor to prosecute Bishop.The trial court granted this request, but the California Court of Appeals reversed the order holding that (1) the decision to prosecute was the District Attorney's and he had decided that the two initial defendants' claim was frivolous, and (2) California statutes give the Attorney General only the power to appoint a special prosecutor.Thus this case differs from the instant case in that (1) the District Attorney decided to prosecute both cases and, therefore, did not find one frivolous, and (2)New York County Law § 701 specifically gives the court the power to appoint a special District Attorney where the District Attorney is disqualified.However, there is pertinent dicta in the California case.The California Court states:

"Had the district attorney approved of or instituted criminal proceedings against Bishop we can assume that he would have actively prosecuted the case and the controversy would not have arisen.

"The fact that Bishop was to be a witness for the prosecution in the cases against Pellegrino and Stromstad (the initial defendants) would not have prevented the district attorney from acting as prosecuting attorney in the case against Bishop.It frequently occurs that a district attorney is called upon to and does prosecute persons who are or have been prosecution witnesses.

"Witnesses for the prosecution, including the victim himself, are not parties to a criminal prosecution and the action is not brought in their interests as individuals or on their behalf.Thus the relationship between them and the district attorney is not that of attorney and client.(Gov.Code § 26500.)"Id., 103 Cal.Rptr. at 655.(Emphasis supplied)

Thus, the court in People v. Municipal Court for Ventura Jud. Dist. etc., supra, saw no conflict of interest in the same District Attorney's office prosecuting two persons, each charging the other with assault.

Arguably, the dicta might imply existence of a rule in conflict with the A.B.A. Standards, Prosecution Function§ 3.9(i), stating that a prosecutor should not charge where he has a reasonable doubt as to the defendant's guilt.Conceivably, the prosecutor may entertain such a doubt where the defendant in an assault case is the complaining witness in a simultaneous cross-complaint.Yet, unless he assumes the role of judge or jury as a fact-finder, he may properly abstain from deciding to prosecute only one of two cross-complaints.

The disqualification problem usually arises because of an alleged earlier attorney-client relationship between the prosecutor and the accused (31 ALR3d 953, 957).Interestingly, none of the cases cited in the ALR annotation mentions a conflict arising out of prosecution by a single office of criminal cross-complaints.The reported cases of disqualification generally involve situations in which the prosecutor has had a personal interest in the outcome of the case, either by virtue of being the victim of a crime or because the prosecutor had prior professional involvement with the defendant(People v. Krstovich, 72 Misc.2d 90, 338 N.Y.S.2d 132;People v. Rupp, 75 Misc.2d 683, 348 N.Y.S.2d 649).

The key question in determining whether there is a conflict of interest, if the same District Attorney's Office prosecutes on behalf of two complaining witnesses, each of whom is a defendant vis-a-vis the other, charged with assault based on the same incident, is whether the knowledge that each assistant district attorney obtains from each complainant-defendant may be imputed to the other assistant.The Selikoff and Santobello cases cited by the defendant are inapposite.They simply hold that the entire District Attorney's Office is charged with knowledge of promises made to defendants in the course of a prosecution.Selikoff and Santobello do not support the view that one member of the District Attorney's staff is chargeable with knowledge of confidential information obtained by another member of the District Attorney's staff.

In a number of reported cases, defendants have been prosecuted by a District Attorney's Office whose staff includes a lawyer who is not prosecuting that defendant but who represented a defendant or his codefendant before joining the District Attorney's Office (People v. Cruz, 55 A.D.2d 921, 390 N.Y.S.2d 442;People v. Washington, 52 A.D.2d 984, 383 N.Y.S.2d 422;Fox v. Shapiro, 84 Misc.2d 223, 375 N.Y.S.2d 945;People v. Loewinger, 37 A.D.2d 675, 323 N.Y.S.2d 98, aff'd without opinion30 N.Y.2d 587, 330 N.Y.S.2d 801, 281 N.E.2d 847).These cases uniformly hold that it must not be presumed that a district attorney or assistant district attorn will divulge confidential information obtained from a partyhe once represented, to any colleague who is prosecuting or will prosecute such party.

In People v. Loewinger, supra, the defendant was indicted for second degree assault and escape, allegedly committed when police officers came to arrest him for his failure to respond to a summons for a violation of the Vehicle and Traffic Law, on which charge he had been represented by Gellman, an attorney.Gellman then became Chief Assistant District Attorney.At the commencement of his trial, appellant was represented by two attorneys, one of whom, Cohen, later withdrew from the case because he had formerly served as an assistant district attorney and in that capacity he had answered a telephone call relating to the defendant's case.The defendant was convicted and then claimed that he had been prejudiced by a conflict of interest because of Cohen's brief representation and the fact that Gellman had formerly represented him on the traffic charge which precipitated the attempted arrest, at which time the defendant allegedly committed the felonies for which he was convicted.The court found that since Cohen had withdrawn as soon as he discovered that he had a slight connection with the case, the defendant had not been prejudiced. ...